Dear readers,

I wanted to share a new academic article that I wrote with you, on a topic I know is close to the hearts and minds of many: the atrocities and human rights violations faced by refugees and migrants around the world. The article is entitled Crimes Against Migrants as Crimes Against All of Us: The Relevance of International Criminal Law to Migrant Control and has been published by the Canadian Journal of Human Rights.

The article draws on a great deal of literature on the topic and hopefully makes it own contribution to thinking around how atrocities against migrants should be understood and addressed as crimes against humanity. With the forthcoming, landmark case of Khaled Mohamed Ali El Hishri before the International Criminal Court, including in relation to abuses against refugees in Libya, I join others in hoping that the subject gets renewed judicial attention, that abuses against migrants (including by Western states) end, and that, ultimately, the rights of victims are vindicated.

What follows below is the introduction the article. A full copy can be found here.

Every year for the past decade, thousands of migrants have crowded onto dinghies along the Libyan shoreline. From there, they push off and attempt what thousands before them have failed to do: traverse the Mediterranean and land safely in Europe. Some make it. Many perish. Many are caught or “rescued” by the Libyan Coast Guard, herded onto ships by armed guards and returned to the North African country. There, they are dumped into squalid, makeshift warehouses-turned- detention centers where they are exposed to risks of sexual violence, persecution, human trafficking and torture.The migrants have no legal rights in Libya and they do not end up there because Libya wants them. But when collecting migrants from the sea and bringing them back to shore, Libyan authorities are not working for themselves; their masters are in Rome and Brussels. The Libyan Coast Guard acts as an extension of European border control in international waters, hundreds of kilometers from the nearest European state. The border is no longer where it seems. 

Almost 8,000 kilometers away from Libya, the border between Myanmar and Bangladesh has been the flashpoint of other atrocities. Seeking to ethnically cleanse Myanmar of the minority Muslim Rohingya population, Burmese authorities forcibly displaced some 700,000 Rohingya into Bangladesh. The border was a critical feature of these atrocities: the Burmese authorities wanted to ethnically cleanse Myanmar of the minority Muslim population, believing that they belonged “elsewhere”. Pushing them across the border into Bangladesh was therefore a driving motivation of the Burmese authorities. At the same time, the border played a critical role in (ongoing) attempts to address the atrocities committed against the Rohingya by the International Criminal Court (ICC). While Myanmar is not a member-state of the ICC, Bangladesh is. In 2019, judges at the ICC accepted arguments that the forcible displacement of the Rohingya was a crime that originated in Myanmar but was completed in Bangladesh, a continuous crime that “spilled” across the border and into territory where the Court had jurisdiction. The ICC prosecutor was therefore granted jurisdiction to open an investigation into international crimes committed against the Rohingya.

What are we to make of these two events, the role of the border and the centrality of abuses against migrants in the perpetration of atrocities? One thing is clear: in these moving, changing borderlands, international crimes — including crimes against humanity — are being committed. At the same time, borders are also places where the work of international criminal law is applied and justice is pursued. Numerous states have set up structural investigations into alleged international crimes — war crimes, crimes against humanity and genocide — committed in contexts like Ukraine, Gaza and Syria. Such structural probes include the solicitation of evidence of atrocities from migrants and investigating the systems, structures and patterns of international crimes (rather than investigating specific individuals for specific crimes). Along with migrants, calls to justice are also on the move, as evidenced by the increasing number of prosecutions of international crimes initiated on behalf of migrating victims against perpetrators of international crimes — especially across Europe and in relation to war crimes. States undertaking the prosecutions are exercising universal jurisdiction, which allows them to investigate international crimes and prosecute perpetrators even when the crimes are committed against victims that are not nationals of the State. At the same time, states utilize immigration remedies to prevent perpetrators of international crimes from crossing their borders, as well as allegations of international crimes as a basis to deport. 

While there are increased perpetration and prosecution of international crimes in borderland spaces, the relevance and impact of international criminal law to border spaces is neglected. This trend must change, especially when considering these borders act as locations where international criminal law primarily operates to protect the sovereign state and promote accountability, but are also locations where a growing number of atrocities are committed. This article argues that understanding and labeling atrocities against migrants as crimes against humanity — and therefore against all of us, as members of a common humanity — may offer some hope in stemming the most violent practices of migrant control. At a time when the location of the border and those doing the work of migrant control are evolving in ways that can frustrate accountability efforts, international criminal law has a role to play in returning a sense of humanity to how we perceive the plight of migrants. This article is not the first to suggest this, as it joins others, like Ioannis Kalpouzos, in an effort to shift the criminalization of migration and migrants themselves, to the criminalization of those who abuse the basic human rights of migrants.

The article examines three dynamics and three contexts in which both the changing nature of the border, as well as the relevance of crimes against humanity, are evident: (i) externalization — the allocation of migrant control beyond the immediate state and the atrocities committed through European migrant control on the Mediterranean; (ii) privatization — the growing use of private actors in migration control and the atrocities committed against migrants in Australia’s offshore migrant detention facilities; and (iii) re- orientation — the shifting of migration control from the border deeper into the state and the blending of immigration and (international) criminal law in the US and Canada. Each section details the harms produced by these processes. A theme that transcends externalization, privatization and reorientation is avoidance of accountability. 

Far from suggesting that sovereignty is a responsibility or a fiduciary duty, the shifting of borders and migration control has produced a bourgeoning industry of atrocities perpetrated against migrants. International criminal law is not the answer, but it is an answer. My contention is that international criminal law is already relevant in these shifting borderland spaces. Framing migrant abuses as crimes against humanity therefore represents an important — albeit imperfect — challenge to the pernicious consequences of border shifting and accountability distancing, as it also makes the violence of migration control more visible to more people. While not an orthodox method, each section of this article describes the relevant lived realities of the issue. This serves as a reminder that these issues are not merely about the “law” or “immigration policy” but grounded in and about human life. 

As always, thank you for your engagement and for reading!